Control of trade in dual-use items

Author (Corporate)
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Series Details September 2016
Publication Date September 2016
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This briefing is one in a series of 'Implementation Appraisals' on the operation of existing EU legislation in practice. Each such briefing focuses on a specific EU law which is likely to be amended or reviewed, as foreseen in the European Commission's Annual Work Programme.

Implementation Appraisals aim to provide a succinct overview of material publicly available on the implementation, application and effectiveness of an EU law to date – drawing on available input from the EU institutions and external organisations. They are provided to assist parliamentary committees in their consideration of the new proposals, once tabled.The system of export controls requires its Member States to comply with general international obligations to counter the proliferation of nuclear, biological, and chemical weapons, and other items with potential military use. The same obligation is also applicable to ‘dual-use items’, i.e. items which can be used for civil and military purposes. The existing export control system of dual-use items requires an export authorisation if a dual-use item is exported from the EU to a non-EU country. Without an export authorisation, the dual-use items cannot leave EU customs territory. The list of dual-use items requiring this authorisation is included in Annex I of Regulation 428/2009. The regulation also establishes several rules and principles for export, transport, transfer of, and brokering of these items.

Although the regulation is binding in its entirety, it gives several broad competences and discretion to the Member States, for example, with regard to sanctions or different types of authorisation. These competences, on the one hand, allow the Member States to implement the regulation in a way that reflects their legal traditions. On the other hand, however, these might influence the process of harmonisation of dual-use export controls negatively, and as a result, limit their effectiveness. In addition, the most recent technological developments such as 3-D printers, geopolitical changes in the world, a growth of international terrorism and connected security concerns, and a greater concern for human rights, may require an update of the existing European legislation.

On several occasions, the European Parliament has called on the Commission to update the existing legislation to react to these challenges. Similarly, the Council and the European Economic and Social Committee noted the need to update the existing legislation. Finally, the European Commission itself expressed a willingness to come forward with a new legislative proposal that will update the existing system of export controls of dual-use items.

Author: Milan Remac

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Related Link(s)
EP: EPRS: Briefing: Implementation Appraisal: Ex-ante Impact Assessment
ESO: Background information: Report from the Commission to the Council and the European Parliament on the implementation of Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items
EurActiv, 20.09.16: Juncker postpones controversial export control bill on surveillance technology

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